October 24, 2005

What do you make of this Q&A with President Bush that took place an hour ago:

Q Mr. President, as a newspaper reported on Saturday, is the White House working on a contingency plan for the withdrawal of Harriet Miers' nomination?

THE PRESIDENT: Harriet Miers is -- is an extraordinary woman. She was a legal pioneer in Texas. She was ranked one of the top 50 women lawyers in the United States on a consistent basis. She is -- look, I understand that people want to know more about her, and that's the way the process should work.

Recently, requests, however, have been made by Democrats and Republicans about paperwork and -- out of this White House that would make it impossible for me and other Presidents to be able to make sound decisions. They may ask for paperwork about the decision-making process, what her recommendations were, and that would breach very important confidentiality. And it's a red line I'm not willing to cross. People can learn about Harriet Miers through hearings, but we are not going to destroy this business about people being able to walk into the Oval Office and say, Mr. President, here's my advice to you, here's what I think is important. And that's not only important for this President, it's important for future Presidents.

Harriet Miers is a fine person, and I expect her to have a good, fair hearing on Capitol Hill.

I'm in too much of a hurry to explain right now -- class starts in 5 minutes -- and I'll concede to the influence of wishfulness, but I read this as a sign that the nomination WILL be withdrawn: he's setting up the Krauthammer exit strategy with the documents; he did not address the question that was asked directly; and he fuzzes things over with irrelevant assertions about what a fine woman Miers is.

MORE: Here's the link to the Krauthammer article proposing that Bush set up "a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives," in which an impossible bind requires the withdawal: "The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege." And then, of course, you say all the nice things about what "an extraordinary woman" Miers is.

I was watching this press conference on TV, and it seemed as if Bush was making a planned withdrawal speech. He hesitated a lot and put his words together carefully. Note that he did not express confidence that she would be confirmed or that she would make a fine Justice. He focused on her general excellence, unrelated to the position she's been nomited for, and on the Senate, stepping up the pressure to give her a fair hearing -- right after turning up the heat about the denial of the documents. It seems as though he wants the Democratic senators to make more of a stink about the documents so that he'll look more credible blaming them for forcing him to withdraw her name. I'll bet they are too smart to make that move, though. Let him twist in the wind while they hold their fire until the hearings. Or maybe even -- crazily riskily -- just go ahead and support her and leave Bush to solve his own problems, without using them for leverage.

I reached the same conclusion, watching the President's statements. This entire episode has been amazing... I feel like I'm watching an episode of "The West Wing". The only thing more amazing than the strategic ineptitude of the White House has been the _even greater_ strategic ineptitude of the Democrat leadership. The mighty Bush White House has stumbled. By the unwritten rules of political opportunism, they should be jumping all over this with both feet, by they seem to be confused. What happened? Did all the strategic thinkers for both parties leave town?

BlueGuitarBob-What would you have the other party do? The reason they're being so quiet, I suspect, is with the full knowledge that they simply can't do any better than these two nominations. Bush had a chance to appoint any two of the stellar field of conservative judges that has emerged in the last two decades, and therefore to firmly correct the Supreme Court's trajectory. He has failed; he gave us one nominee who is superbly-qualified but who has no firm commitment to originalism or textualism, and another nominee who is barely qualified and has no firm commitment to originalism or textualism. Are they conservative? Probably, to some extent, but they are the kinds of conservatives who drift. Roberts, in retrospect, looks at least a safe-ish pick; he may be a Rehnquist (good, but not great) or he may be a Kennedy (barely adequate), but he is unlikely to be a Souter (disastrous). Miers, on the other hand, might be a Kennedy if we're lucky, an O'Connor at most likely, and shows every indicator of being a Souter in waiting.

The trouble is, it will be a decade before we will really be able to say with any certainty, but which time Bush will be beyond punishment (unless you count boycotting his library). This silliness by some on the right about leaving the party is impractical and pointless; this kind of fratricidal infighting will get us nowhere except, possibly, Justice Balkin. A ghastly prospect. Defeat the nomination, get someone better, lose the House by as small a margin as possible in 2006, and keep the Presidency in 2008.

I think there are a large number of people that are hearing and seeing in the President's words exactly what they want to hear. I see no inference that he is going to withdraw the nomination because of Judiciary Committee requests. If the opposite were true then no president, Republican or Democrat, will be able to get his appointment seated, if the opposition merely has to demand sensitive papers. The President will not give the Senate this form of veto, no president would. Wanting something to be true is not the same as that thing being true. In this case then Ms. Miers will be confirmed, regardless of the hooplah, and probably serve the nation honorably in this post for a good long time.

Pat-"I think there are a large number of people that are hearing and seeing in the President's words exactly what they want to hear."

He hasn't said anything except "trust me." Now, I know you're not going to tell us you want to hear "trust" me from a Republican President after Warren, Blackmun, O'Connor, Kennedy and Souter...Right?

"If the opposite were true then no president, Republican or Democrat, will be able to get his appointment seated, if the opposition merely has to demand sensitive papers."

Pat, you're being obtuse about this. The reason that people are asking for sensitive papers is because there's nothing else they can ask for!! The Senate has to evaluate the nominee based on some criteria, but she simply hasn't written anything of any substance other than the WHC memos. My own opinion is that the White House should NOT hand over those memos - but then, what can the Senate evaluate her based on? Her questionnaire answers? A series of insipid letters to the governor and some vanilla bar assoc. news items? Miers is the ultimate stealth candidate, and I suspect the last. This trend is not sustainable; the White House should not release the documents (nor be expected to), and the Senate should refuse its consent to her confirmation.

Since I was responding to the original post, I reread the interview and could not find in the President's comments anything remotely resembling a " trust me" statement. So I think that first part of my argument concerning projection holds true. The last point is in a claim to view sensitive documents for proof that Ms. Miers is either a conservative or stealth liberal? Even if under the most remote circumstances these documents were turned over is there any guarantee that they would reveal anything at all except the normal advice a lawyer would give his or her client. Lawyers may think that they sit at right hand side of God or the President but does anyone seriously believe that the President uses lawyers for anything more than to provide legal rationale for policy not the policy itself. The Democrats used this tactic, demanding mountains of "revealing" documents, against Roberts and still lost. They, the Democrats now and at some time in the future the Republicans, will use this tactic, even if the nominee has appeared on an Oprah tell-all, hanky and Bible in hand.

The rest of my comment should have been that, there is a large body of anecdotal evidence from Texas concerning the character of Ms. Miers, from both Republicans and Democrats. In the present circumstances where the chief goal of the President is to get the nominee without a Bork and Thomas typebloodbath is understandable. It seems ingenuous for conservatives to now claim that they want full disclosure, when for the last two decades they have been demanding just the opposite.